My child’s wishes aren’t being followed in my Virginia custody case

Posted on Feb 9, 2022 by Katie Carter


Custody and visitation cases can present a range of issues and, as a result, a range of different options. Even between coparents with seemingly similar personal situations, entirely different custody and visitation arrangements can be either agreed upon by the parents or ordered by the court.

Parents are often really concerned, in these types of cases, about what their children’s specific wishes are, especially when they believe that their children’s wishes would coincide with their own. I get a lot of questions about the specific age at which a child can express a preference in a custody and visitation case.
For whatever reason, a lot of people tend to come in with the idea that, somewhere around the age of 14, a child’s preference suddenly, magically carries a whole lot of weight. In reality, though, that’s not really the case.

While the child’s preference does matter, in a manner of speaking, we almost never have children testify in court about their preference. We also don’t often have them come in and speak to the judge in chambers. The way that a child’s preference is introduced, if it is introduced at all, is often through the lens of the Guardian ad litem.

The Guardian ad litem is an attorney appointed by the court to represent the child’s interests. That’s not to say that the GAL is the attorney for the children; it is the Guardian ad litem’s job to meet with the children, meet with the parents, investigate the situation, and, ultimately, to render an opinion to the court about what arrangement would be in the children’s best interests. The Guardian ad litem’s opinion could be the same as or different than the child’s opinion.
After all, we’re talking about a child here. A child is not an adult, and really isn’t old enough or mature enough to make a decision as important as one about custody and visitation. It’s not until the child is 18 – actually an adult – that they can really make a decision like that for themselves, and, by that point, the court isn’t a factor anymore, anyway.

A child can have an opinion, of course, the same as the rest of us. It’s just that the child’s opinion may or may not carry any weight with the court – and the court is generally really careful about how the child is made aware of or involved with any ongoing litigation.

You have to keep in mind how damaging all of this can be for a child. To ask a child to decide between their mother and their father is, well, definitely not a best case scenario.

As the child’s mother, though, it’s also not a comfortable place to be in. I hear all the time from moms who are concerned about the role their Guardian ad litem is playing in their case, and the fact that they feel that their child’s preference isn’t really factoring in to the decision as much as they feel like it should.
I completely understand what a difficult position this is to be in. I’m a mom, too. The Guardian ad litem is a virtual stranger to you, and one who will ultimately issue an opinion about how you and your ex should share custody and visitation responsibilities between the two of you. It’s really deeply personal stuff. And, besides all that, there are probably issues with your child’s father – whether it’s domestic violence, drug or alcohol addiction, concerns about abuse and or neglect of the children, differences in parenting philosophies, dealing with petty stepparents or complicated blended family scenarios, or something entirely different – that the GAL will have to learn to understand on the fly. There’s no question, being a GAL is difficult.

But my child has a preference – and no one is listening!

Before you get too riled up, talk to your attorney about it. There are a couple things that could be going on here, and its important that you don’t take big steps, or make nasty accusations, before you understand the ramifications of any possible courses of action.

A child may have a preference – it’s true. But that preference may not have much weight, depending on the age, experience, and maturity of the child in question. The child’s preference may have even less weight if the Guardian ad litem is concerned about the parties making disparaging comments about each other or using parental alienation to bolster their own influence over the child. Even if that’s absolutely not happening in your case, you’ll want to tread carefully to be sure that it doesn’t look like it may be happening. (Just think: if you DIDN’T talk to your child about the case in detail, how would you be SO SURE of her preference? The optics often aren’t good.)

You likely won’t be able to get the Guardian ad litem removed, either. In fact, if you find yourself in court again in the future on a modification of custody and visitation, you may also find that the same Guardian ad litem is reappointed. So, again, tread sort of carefully for that reason – you may see this person again.
You should also consider the possibility that the child’s preference isn’t as decided as you might think. Children involved in custody cases are in a precarious position. They’re also smart, and often emotionally sensitive. They know what you want to hear. But they love their other parent, too. It’s not uncommon that children tell BOTH parents that they want them to have custody – or that they parrot out exactly what the parent has told them. I’m not saying that’s what’s happening here, but it’s possible that your child’s opinion isn’t quite as decided as they’d have you believe.

I’m not saying you have to sit back and let the chips fall where they may, either. I actually know nothing about your case; I’m just writing a generalized article in response to a question that I’m often asked. What I would say, though, is that you should talk to your attorney about your fears and concerns and, yes, even your child’s preference before you freak out.

Ultimately, it’s your case, and you call the shots – but if you do something, you should have consulted with your attorney first. Try to understand the advantages and disadvantages of any course of action you may be considering. Maybe you still decide to do something (and maybe it has a terrible impact on your custody case), but at least you will have done so after consulting with your attorney and getting her take on the situation.

You have to remember – we’ve seen hundreds, if not thousands, of custody cases. We’ve seen them go right and go wrong. We know what judges like and don’t like, and we know which GALs are prickly and which ones can handle a little extra questioning. Part of the reason you hire an attorney is because of our experience with all of the various players in these cases, and our ability to talk candidly with them about situations as they arise.

For more information or to schedule a consultation, give our office a call at 757-425-5200.